Working with Children Act 2005

Working with Children Act 2005

Act No. 57/2005

table of provisions

Section Page

Part 1—Preliminary 1

1. Purpose 1

2. Commencement 2

3. Definitions 2

4. Meaning of finding of guilt 7

5. Meaning of "charged with an offence" 8

6. When is a charge "pending"? 9

7. Act to bind the Crown 9

Part 2—Working with Children Check 10

8. Purpose of Part 10

9. What is child-related work? 10

10. Application for working with children check 14

11. Consideration of application 15

12. Category 1 application 16

13. Category 2 application 17

14. Category 3 application 20

15. Withdrawal of application 21

16. Submission sought from applicant before giving negative
notice 22

17. Outcome of application 23

18. Copy of notice to be given to employer or agency 24

19. Duration of assessment notice 25

20. Holder of assessment notice to notify of relevant change in circumstances 25

21. Re-assessment 27

22. Notification requirements of holder of assessment notice 28

23. Revocation of assessment notice and surrender of document 28

24. Surrender of assessment notice 30

25. Restriction on right to re-apply for working with children
check 30

26. Jurisdiction of VCAT 31

Part 3—Exemptions from Working with
Children Check 34

27. Volunteer whose child is participating or ordinarily participates in the relevant activity 34

28. Person working with closely related child 34

29. Children 35

30. Teachers 35

31. Police officers 36

32. Visiting workers 37

Part 4—Offences Connected with Child-related Work 38

33. Engaging in child-related work without an assessment notice 38

34. Offence for holder of negative notice to apply for child-
related work 40

35. Offence to engage in child-related work a person who does
not have an assessment notice 40

36. Offence for agency to offer the services of a person who
does not have an assessment notice 42

37. Using volunteer assessment notice for paid work 43

38. Offence to use false or other person's assessment notice 44

39. False or misleading information 44

40. Confidentiality of information 45

Part 5—Miscellaneous 47

41. Duty on police to notify Secretary of certain matters 47

42. Secretary may notify police of certain matters 47

43. Delegation 47

44. Offences by bodies corporate 48

45. Offences by unincorporated bodies, partnershipsetc. 49

46. Giving of notices 49

47. Evidentiary provisions 50

48. Immunity 51

49. Regulations 51

Part 6—Amendment of Certain Acts 55

50. Amendment of Sentencing Act 1991 55

51. Amendment of Sex Offenders Registration Act 2004 59

52. Amendment of Victorian Civil and Administrative Tribunal Act 1998 63

53. Amendment of Victorian Institute of Teaching Act2001 64

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Endnotes 66

INDEX 67

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Section Page

Victoria

No. 57 of 2005

iii

Section Page

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Section Page

Working with Children Act 2005[(]

[Assented to 13 September 2005]

iii

Act No. 57/2005

Working with Children Act 2005

Act No. 57/2005

Working with Children Act 2005

The Parliament of Victoria enacts as follows:

Part 6—Amendment of Certain Acts

Working with Children Act 2005

Act No. 57/2005

Part 1—Preliminary

1. Purpose

(1) The main purpose of this Act is to assist in protecting children from sexual or physical harm by ensuring that people who work with, or care for, them have their suitability to do so checked by a government body.

(2) This Act amends the Sentencing Act 1991 to prevent sentencing courts from having regard to any consequences that may arise under this Act and amends Schedule 1 to that Act to broaden the range of sexual offences which may cause an offender to be treated as a serious sexual offender under that Act.

(3) This Act also makes minor amendments to—

(a) the Sex Offenders Registration Act 2004 consistent with provisions of this Act; and

(b) the Victorian Civil and Administrative Tribunal Act 1998 with respect to the procedure of VCAT on applications made to it under this Act; and

(c) the Victorian Institute of Teaching Act 2001 to make further provision for certain notification requirements for the purposes of this Act.

2. Commencement

(1) Subject to sub-section (2), this Act comes into operation on a day or days to be proclaimed.

(2) If a provision of this Act does not come into operation before 1 July 2006, it comes into operation on that day.

3. Definitions

s. 2

(1) In this Act—

"agency" means a person that carries on (whether or not with a view to profit and whether or not in conjunction with any other business) the business of procuring child-related work for persons seeking such work, whether or not the business includes procuring any other kind of work for those persons or other persons;

"assessment notice" means an assessment notice given by the Secretary to an applicant for a working with children check under Part 2;

"Australian legal practitioner" has the same meaning as in the Legal Profession Act 2004;

"child" means a person under 18 years of age;

"child pornography offence" means—

(a) an offence against section 68(1) (production of child pornography), 69(procurement of minor for child pornography) or 70(1) (possession of child pornography) of the Crimes Act 1958; or

s. 3

(b) an offence against section 57A of the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (publication or transmission of child pornography); or

(c) an offence against section 233BAB(5) or 233BAB(6) of the Customs Act 1901 of the Commonwealth (special offence relating to tier 2 goods) where the goods are goods covered by section 233BAB(1)(h) of that Act; or

(d) an offence referred to in sub-paragraphs(ii), (iii), (iv), (v), (vi) or(vii) of paragraph (df) of clause 1 ofSchedule 1 to the Sentencing Act 1991;

"child-related work" has the meaning given by section 9;

"direct contact" means any contact between a person and a child that involves—

(a) physical contact; or

(b) face to face oral communication; or

"educational institution" means—

s. 3

(a) any State school established under section 21 of the Education Act 1958 or any school registered under Part III of that Act; or

(b) any of the following—

(i) a TAFE college within the meaning of the Vocational Education and Training Act 1990;

(ii) a university with a TAFE division within the meaning of the Vocational Education and Training Act 1990 to the extent that the university provides technical or further education;

(iii) a provider of adult, community and further education, within the meaning of the Adult, Community and Further Education Act 1991, that is eligible for funding under section6(1)(b) of that Act;

(iv) an adult education institution within the meaning of the Adult, Community and Further Education Act 1991;

(v) an organisation on the Register of Education and Training Organisations within the meaning of the Victorian Qualifications Authority Act 2000—

to the extent that the college, university, provider, institution or organisation provides a program of study or training primarily for, or directed at, children and that leads to the award of a Senior Secondary Certificate of Education that is recognised by the AQF within the meaning of the Victorian Qualifications Authority Act 2000; or

but does not include—

(d) except to the extent provided by paragraph (b), a university specified in Schedule 1 to the Tertiary Education Act 1993; or

(e) except to the extent provided by paragraph (b), a TAFE college within the meaning of the Vocational Education and Training Act 1990 or an adult education institution within the meaning of the Adult, Community and Further Education Act 1991—

s. 3

even if that university, college or institution has a student under 18 years of age;

"interim negative notice" means an interim negative notice given by the Secretary under section 16(1)(b), including one given under that section as applied to a re-assessment by section 21(5);

"negative notice" means a negative notice given by the Secretary to an applicant for a working with children check under Part 2 or on revoking an assessment notice under section 23;

"officer"—

(a) in relation to a body corporate that is a corporation within the meaning of the Corporations Act, has the same meaning as in section 9 of that Act; and

(b) in relation to any other body corporate, means any person (by whatever name called) who is concerned or takes part in the management of the body corporate;

"parent", in relation to a child, has the same meaning as in the Children and Young Persons Act 1989;

"person" includes an unincorporated body or association and a partnership;

s. 3

"relevant finding" means a finding of a kind referred to in section 14(1)(a);

"relevant offence" means an offence—

(a) specified in clause 1 of Schedule 1 to the Sentencing Act 1991 (sexual offences); or

(b) specified in clause 2 of that Schedule (violent offences); or

(c) specified in clause 4 of that Schedule or against section 71AB or 71B of the Drugs, Poisons and Controlled Substances Act 1981 (drug offences); or

(d) against section 46 or 47 or Part 5 of the Sex Offenders Registration Act 2004 (other than section 70); or

(e) against the Serious Sex Offenders Monitoring Act 2005 (other than section 42(3)); or

(f) specified in section 13(1)(f); or

(g) against Part 4 of this Act (other than section 37 or 40);

"Secretary" means Secretary to the Department of Justice;

"working with children check" means the process under Part 2 for assessing or reassessing whether a person is suitable to work in child-related work.

(2) For the purposes of this Act a person is listed with an agency if he or she has entered into an agreement with the agency for the agency to procure child-related work for him or her, whether or not the agreement extends to any other kind of work.

(3) For the purposes of this Act a person does not cease to be a volunteer merely because he or she has all or any of his or her out-of-pocket expenses reimbursed.

4. Meaning of finding of guilt

s. 4

(1) For the purposes of this Act, a reference to a finding of guilt in relation to an offence committed by a person is a reference to any of the following—

(a) a court making a formal finding of guilt in relation to the offence;

(b) a court accepting a plea of guilty from the person in relation to the offence;

(c) a court accepting an admission made under and for the purposes of section 100 of the Sentencing Act 1991, or under equivalent provisions of the laws of a jurisdiction other than Victoria;

(d) a finding in relation to the offence under section 17(1)(b) or 17(1)(c) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 or under section 17(1)(c) of that Act in relation to an offence available as an alternative or a finding under that Act of not guilty because of mental impairment, or a finding under equivalent provisions of the laws of a jurisdiction other than Victoria.

(2) A reference to a finding of guilt in this Act does not include a finding of guilt that is subsequently quashed or set aside by a court.

5. Meaning of "charged with an offence"

s. 5

For the purposes of this Act, a person is deemed to have been charged with an offence if—

(a) a presentment has been made or an indictment has been laid for the offence; or

(b) a charge has been filed against the person for the offence, whether or not—

(i) a summons to answer to the charge; or

(ii) a warrant to arrest the person—

has been issued and served.

6. When is a charge "pending"?

(1) Subject to any regulations made under sub-section(2), for the purposes of this Act a charge against a person for an offence is pending until the charge is finally dealt with in any of the following ways—

(a) the charge is withdrawn or the person dies without the charge having been determined;

(b) the charge is dismissed by a court;

(d) the person is acquitted or found guilty of the offence by a court.

(2) The regulations may prescribe circumstances in which a charge against a person for an offence is not to be taken to be pending for the purposes of this Act.

(3) A reference in this Act to the withdrawing of a charge includes a reference to the entering of a nolle prosequi.

7. Act to bind the Crown

s. 6

(1) This Act binds the Crown, not only in right of the State of Victoria, but also, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.

(2) To avoid doubt, the Crown is a body corporate for the purposes of this Act and the regulations.

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Part 2—Working with Children Check

8. Purpose of Part

s. 8

(1) The purpose of this Part is to establish a process for assisting in determining whether a person is suitable to work in child-related work.

(2) Nothing in this Act takes away from, or removes the need to comply with, any requirement imposed by or under any other Act with respect to child-related work.

Note: Child-related work includes voluntary work and practical training as well as paid employment (see section 9).

9. What is child-related work?

(1) For the purposes of this Act, child-related work is—

(a) work engaged in—

(i) under a contract of employment or a contract for services (whether written or unwritten); or

(ii) as a minister of religion or as part of the duties of a religious vocation; or

(iii) as an officer of a body corporate, member of the committee of management of an unincorporated body or association or member of a partnership; or

(b) practical training undertaken as part of an educational or vocational course other than under an arrangement within the meaning of Part IVA of the Education Act 1958; or